Legal Help with Benefit Appeals and Reviews

Government changes in effect from April 2013 mean that there is no Legal Aid available for most Welfare Benefit matters. Legal Aid is now only available for applications for leave to appeal directly to the Upper Tribunal following a First Tier Appeal hearing and for some Judicial Review proceedings.

KIN Cymru are acutely aware that this may leave many people without access to the advice that they need. We list below a brief guide on to how to conduct your case yourself. If however you feel that you still need help KIN Cymru does offer a low cost, fixed fee advice /advocacy service based approximately on Legal Aid rates.

We have broken down the possible points at which you may need assistance into “steps” and are willing to provide help with any of the “steps” below at a rate agreed and fixed in advance. Some rates are quoted as variable. This is because no one’s case is the same. Some are relatively straightforward, others are more complex thus we offer a range of fixed fees to cover most situations.

Disputing DWP Decisions

Appeals and Reviews

Whenever a decision is made regarding your entitlement to benefit you should receive a decision in writing.

A review is where you are simply asking the DWP to look again at the decision – you may think the DWP did not understand your situation and by giving them more information you may persuade them to change their mind. A review is usually undertaken quite quickly, but will usually be done by the same people who made the original decision.

An appeal is a request for the matter to be sent to a First Tier Appeal Tribunal. This can take a lot longer, but the First Tier Appeal Tribunal is independent of the DWP and your case is usually decided at a hearing which you can attend – this gives you a chance to fully explain your situation; we always advise our clients to attend whereever possible as they are always best placed to fully explain their needs.

Apart from housing benefit, for most benefits including Universal Credit, ESA, JSA & PIP you have to appeal directly to Her Majesty’s Courts and Tribunal Service. You will not be able to do this until you have contacted the DWP and asked them to review their decision – this is called the Mandatory Review Stage. Only when you have received a document called a Mandatory Reconsideration Notice can you then Appeal.

You Appeal Directly to Her Majesty’s Courts and Tribunal Service by filling in an SSCS1 appeal form. This can be downloaded at www.justice.gov.uk/tribunals or www.gov.uk, or can be obtained from some advice centres.

Appeals are only valid if you give “Grounds” for appeal – this is simply the reason why you feel the decision is wrong. For disability benefits you can simply state “I feel you have underestimated the effects of my condition”. However the more detail you give in your appeal letter the more likely that any DWP decision maker looking at the decision again may be able to alter the decision without it going to appeal.

Once the appeal has been lodged Her Majesty’s Courts and tribunal Service will notify the DWP and the DWP then have 28 days to prepare a response to Appeal. This should be a written submission stating why the DWP have made the decision that they have, along with any relevant evidence, copies of your claim forms, medical evidence etc.

You should read this response carefully and see if you feel the DWP have made a mistake about your circumstances or the Law. Also consider whether you could provide any evidence in support of your case. If your appeal is about a disability or sickness benefit you should consider whether your GP or specialist will provide you with a medical report. Many Practitioners charge a fee for reports.

Housing Benefit

For Housing Benefit, if you disagree with the decision you usually have one calendar month to ask for a review or to appeal the decision. Time starts to run from the date of the letter informing you of the decision, this is the date that it is sent, not the date that you receive it.

You make an appeal to the same office that made the decision. The council will usually review your matter again if they receive an appeal request. It is usually safest to ask for a review and state that if the matter cannot be reviewed in your favour, that you then want the matter to be treated as an appeal.

Requests for reviews or appeals regarding housing benefit should be in writing. You have to give enough details in your letter to show who you are, what the decision was and why you disagree with it.

First Tier Tribunal Appeals

Whether you appeal directly to HMRC or via the DWP – your matter will go before the First Tier tribunal (Social Entitlement Chamber).

The Tribunal Service will write to you to ask you if you want an Oral Hearing or if the Tribunal can consider your case on the papers. You have a much higher statistical chance of success at tribunal if you opt for an oral hearing – this will give you a chance to fully explain your circumstances.

Notifying you of the hearing

Once the appeal bundle has reached HM Courts and Tribunal Service they will schedule your case for a hearing – this can take several months. Roughly 2-3 weeks before the hearing you will be notified by post. You should always be given at least 10 days notice of a hearing, unless you have agreed to short notice. If for some reason you cannot make the date, contact the HM Courts and Tribunal Service immediately and ask if the hearing can be postponed. You will have to put your request in writing and explain clearly why you could not attend on that date. The Tribunal Judge will consider your request – unless you are categorically notified that your request for a postponement has been granted you should always attend the hearing. If you do not turn up on the day the Tribunal may decide to proceed in your absence.

The Hearing

The hearing is relatively informal. It is not usually like a court hearing in that, it normally takes place in a simple room with just a table between you and the Tribunal. The people who make up the Tribunal will vary, depending on the benefit which you are appealing. An Employment and Support Allowance appeal will usually have two people, a Judge and a Doctor. Disability Living Allowance and Personal Independence Payment (PIP) Appeals usually have 3 people; a Judge, Doctor and someone with experience of disability. Other non-medical Tribunals usually just consist simply of a Judge.

Another person who may attend the hearing is the Clerk to the Tribunal – he or she will be there to administratively assist you and the Tribunal. He or she will usually meet you in the waiting room when you arrive. They will have list of the day’s hearings and will ensure that you are on it. They will ask you if you have any extra evidence to hand in to the Tribunal and will explain how to claim back your travel expenses. They will usually escort you into the Tribunal Room.

The only other person likely to attend is a Presenting Officer from the DWP or Local Authority. Although they are paid by the DWP or Local Authority their role in the Tribunal is meant to be to assist the Tribunal. Thus whilst they may outline the DWP/L.A.’s case, their presence is to ensure that all evidential and legal issues are made clear to the Tribunal.

The Tribunal is completely independent of the DWP and has a duty to act justly and fairly, ensuring that you get a chance to fully participate.

Usually when you arrive at the Tribunal they will have already read the papers which the DWP provided as part of the Tribunal bundle. They will also have read anything that you sent in – though if you sent it in less than 7 days before the hearing, it is best to check with the Tribunal (or the Clerk) beforehand that those documents are with the Tribunal.

The Tribunal will usually therefore have a good overview of your case. It will not have made up its mind, but the Tribunal may have decided which areas it wants clarifying so may start by asking you specific question about your case. Make sure you answer as accurately as possible. Try and keep the point you have been asked about and try not to talk for too long on any particular point.

When the Tribunal have asked all their questions the Judge will usually ask you if you have anything to add. This is your chance to mention anything that you do not feel has been covered by the Tribunal or perhaps not in sufficient detail.

Once the Tribunal feel that all issues have been covered you will usually be asked to step outside whilst it makes its decision. You will then usually be called in to inform you of the decision and you will handed a piece of paper called a Decision Notice that very briefly outlines the decision and possibly a little of the reasons behind it.

Sometimes the Tribunal will want to consider your case for longer and may tell you that it will make a decision later. This is called a “Reserved Decision”. Usually the Tribunal will still make the decision on the same day so you will usually get the decision sent to you in the post within a day or Two.

What if I Lose my Tribunal?

If you are unhappy with the outcome of your Tribunal you can challenge the decision in two main ways.

Apply for set aside of the Tribunal – you can do this if it is in the Interests of Justice and :-

You or your representative did not receive all relevant documents or were not sent them at the appropriate time

You or your representative were not present at the hearing ( and you had indicated that you wanted this )

Some other procedural irregularity

Apply for leave to appeal to the Upper Tribunal – you can do this on the ground that the Tribunal made an error of Law. Examples of errors of Law are where the Tribunal :

Applied the law incorrectly

Conducted the proceedings in breach of the proper procedures which breached the rules of natural justice

Failed to give adequate reasons for its decision

Failed to make proper findings of Fact

Came to a conclusion unsupported by the evidence

Essentially if you cannot understand how the Tribunal came to its decision or you feel that the Tribunal was in some way unfair, you may be able to show that the Tribunal erred in Law. In order to do this you will need to know the reasoning behind the Tribunal decision – thus you must request a statement of reasons for the Tribunal decision. Any Statement of reason must be requested within one calendar month of the Tribunal sending or telling you of its decision. You can ask the Tribunal to extend time to issue a statement of reasons, if you have a good reason for requesting it late, but the Tribunal does not have to grant your request. You should also ask for the Record of Proceedings. This will be the Tribunal Judge’s handwritten notes of the hearing. These must also be requested within 1 calendar month.

If you require assistance with a welfare benefits issue please email benefitshelp@kincymru.org.uk and we’ll respond as soon as we can. Please note that we charge for welfare benefits advice and assistance for adults – this important source of funding supports our other vital projects for disabled children such as our DLA for Children project.